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Liberty, the 'Law of the Land', and Abortion in North Carolina

Does the North Carolina Constitution safeguard a woman’s right to make “the highly personal choice whether or not to terminate her pregnancy”? There has been no definitive ruling from the state courts, so this interesting question may be admitted as open. However, there are two critical premises of North Carolina constitutional law which any respectable inquiry into the state constitutional status of abortion rights in North Carolina must accept as given:

First, North Carolina has traditionally understood the “liberty” secured by the North Carolina Declaration of Rights to be broad. One objection commonly raised against the constitutionalization of abortion rights is that such action requires an impermissible extratextual excursion on the part of the courts, but it is difficult to see any merit in it under the North Carolina Constitution. Second, North Carolina has long understood infringements of such liberty to be subject to judicial review, akin to the heightened judicial scrutiny of official action associated with substantive due process jurisprudence under the federal Due Process Clause. Properly understood, these two principles point in favor of a broadly protective right of choice.

Date posted: April 23, 2010

Suggested Citation

Bilionis, Louis D., Liberty, the 'Law of the Land', and Abortion in North Carolina (April 15, 2010). North Carolina Law Review, Vol. 71, p. 1839, 1993; U of Cincinnati Public Law Research Paper No. 10-14. Available at SSRN: http://ssrn.com/abstract=1584470